Stephen McCrohan, a public defender in Colorado, recently filed a motion claiming that the District Attorney’s Office policy of paying bonuses for convictions gave the prosecutor in his case an improper financial interest in the outcome of the matter. District Attorney Carol Chambers had paid bonuses to her felony prosecutors who won convictions in at least 70 percent of their cases. In order to get the average $1,100 award, they had to try at least five cases – plea bargains and mistrials don’t count. Judge Carlos Samour Jr. allowed McCrohan to subpoena documents about the bonuses and at the time of submitting this article all the documents have not yet been turned over.

Does a bonus amount to an unlawful contingency fee in a criminal matter?

Chambers is now backpedaling, saying that she will not offer bonuses in 2011 because of budgetary concerns. But the questions remain – does a bonus amount to an unlawful contingency fee in a criminal matter? Should the court force the District Attorney’s Office to abandon the cash for convictions policy?

The job of prosecutors comes with special responsibilities. Prosecutors have what many consider a quasijudicial function, in that they are the ones who decide what to investigate, whom to charge and what to charge. They must balance their advocacy with their other role – “to seek justice, not merely to convict,” according to the ABA Standards Relating to the Administration of Criminal Justice, 3-1.2 (c). With this dual role come some special responsibilities, both of constitutional and ethical dimensions, such as ABA Model Rule 3.8, which enumerates a series of special requirements for prosecutors. But as any prosecutor will tell you, the criminal justice system often relies on the personal integrity of the district attorney. This is most irrevocably true in death penalty cases.

“Our job is not to directly tie the conviction rate, trials or plea bargains to a monetary figure. That would be like working on a commission or something, and that is not what we do” – Colorado District Attorney Scott Storey.

Other Colorado District Attorney’s offices say they don’t typically award bonuses or tie performance evaluations to convictions. That sounds disingenuous; of course an attorney’s conviction rate would be important to their progression in a District Attorney’s Office. Public defenders say that they worry that a prosecutor just shy of making her five convictions might be tempted to drive a harder plea bargain to force a case to trial rather then consider whether a trial is in the interests of justice.

In my view, prosecutors are no different than attorneys in private practice, at least as far as their incentive to grab a financial brass ring are concerned. Have you ever noticed how associate hours in a private firm seem to go up – sometimes way up – right before the year ends? Who knows how many of their hours are exaggerated to fall within bonus guidelines, because no one is going to talk about it. Prosecutors understand this incentive, and have expressed unease over the bonus. “Our job is not to directly tie the conviction rate, trials or plea bargains to a monetary figure. That would be like working on a commission or something, and that is not what we do” said Colorado District Attorney Scott Storey. It also may not reward the right people; the toughest cases – the ones most likely to result in an acquittal or mistrial – are given to the best people in the office. Therefore the bonus may end up rewarding the people with less talent and ability.

Word on the street is that this is not the first time Ms. Chambers has been the subject of ethics allegations and controversy. She was said to have put judges on a stopwatch to see who was swifter in managing their case load. Hopefully her bonus system will not be picked up by other states as an idea whose time has come.

-Carol M. Langford (clangford.com) is an attorney in Walnut Creek specializing in ethics matters and attorney conduct matters. She is also a lecturer in professional responsibility at U.C. Berkeley this semester.